Subject:
             Herron Analysis & Spending Plans for the Tobacco-$$$
        Date:
             Mon, 20 Dec 1999 06:18:52 -0800
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
 
 
 

Today's T-R sorta-covers my pending litigation (at the end); it doesn't
cite, however, the concept that these monies be spent in a fashion c/w
both CDC "Best Practices" Guidelines [tobacco control] and tenets in the
original Complaint [Medicaid recipients].  Increasingly, it appears it
will be necessary NOT to settle prematurely and to seek judicial
override of all the "worthwhile" (but tangential) ideas being
promulgated by the politicians.  [I made one change, below, correcting
the spelling of the name of Tom "PAESE"; I don't know which spelling is
used by Mr. Elliot/Elliott.]  The threat that this could occur might
prompt the Settling Parties, ultimately, to want to settle my current
litigation...instead of trying to pooh-pooh its implications.

The text of the T-R article follows an updated analysis of the posture
adopted by the Philly Court of Common Pleas.

*

I re-read the Herron Opinion (for the umpteenth time) and continue to
conclude that he may very well have forced himself to give me standing
in the Wawa case.  Ultimately, he concludes that two concepts were
"dispositive":  "standing" and "mootness."  On each of the other
dozen-or-so discussion points, I had rejoinders for each argument,
creating the typical situation that routinely results in a prompt
rejection of any effort to ask a judge to re-think an issue.  [Thus,
revisit my Web-page to recall them.]

But, instead of typing all seventeen pages thereof, I will provide
*complete* excerpts from the conclusions he reached only on each of
these two pivotal points; the reader will then be able to appreciate the
basis for my optimism.  These will be handled--for obvious reasons--in
reverse-order.  [References have been deleted.]  Commentary is in
ALL-CAPS.

**MOOTNESS**

"Unless an actual case or controversy exists at all stages of the
judicial process," the Commonwealth Court has observed, "a case will be
dismissed as moot."  In the instant complaint, Dr. Sklaroff concedes
that the billboard advertising campaign that allegedly violated the MSA
was voluntarily discontinued "expeditiously" by Wawa after the AG
communicated with that company.  Since it was this advertising campaign
that plaintiff claims violated the MSA, its discontinuance renders this
present action moot.

THE WAWA CASE NOW IS RECOGNIZED TO MEET THIS CRITERION, FOR IT CONTINUES
TO EXIST AT *ALL* STAGES OF THE JUDICIAL PROCESS, INCLUSIVE OF THE
PRESENT.  INDEED, THE CONTINUING NATURE OF THE PROBLEM IS PROVEN BY BOTH
THE REJECTION (BY SHEETZ...IN WESTERN-PA) OF THE AG'S ENTREATIES AND THE
NATIONAL FINANCING PATTERN OF BILLBOARD ADS (THROUGH
THIRD-PARTIES...RETAILERS/DISTRIBUTORS).

It is true that moot questions will be considered when one or more of
the following exceptions exist:  "1) when the case involves questions of
great public importance; 2) when the conduct complained of is capable of
repetition yet avoiding review or 3) when a party to the controversy
will suffer some detriment without the court's decision."

NOTE THE USE OF THE WORD "OR" AND CONSIDER WHETHER THE WAWA CASE
SATISFIES *ALL* OF THESE CRITERIA.

The great public importance exception is rarely invoked.  While
violations of the MSA would be of great public importance, alleged
violations that are "expeditiously" and "voluntarily" curtailed after
the AG's intervention do not fall into that category.  The social import
of the MSA is too important to allow abstract tests of its parameters in
the absence of a concrete case or controversy.

OBVIOUSLY, HIS CONTEMPORANEOUS JUDGMENT WAS THAT WHAT HE CONSIDERED TO
BE "MOOT" CONDUCT SHOULDN'T BE WEIGHTED TO OVERCOME THE MSA'S "SOCIAL
IMPORT" BECAUSE IT WAS EXCESSIVELY ABSTRACT.  OBVIOUSLY, THE *PRESENCE*
OF A "CONCRETE CASE OR CONTROVERSY" MUST PROMPT HIM TO REVERSE THIS
CONCLUSION.  REGARDLESS OF HOW RARELY THIS "GREAT PUBLIC IMPORTANCE"
CRITERION IS INVOKED, IT CANNOT NOW BE IGNORED.

While it is, of course, possible that the MSA's provisions relating to
billboard advertising may be violated in the future, such violations
would be subject to review as an actual case and controversy.
Plaintiff's own complaint, however, concedes that there is no present
billboard campaign to review.

MY SUBSEQUENT FILING NOTED THAT THERE IS, NOW, PRESENTLY, A BILLBOARD
CAMPAIGN TO REVIEW.  I HAD *PREDICTED* THE POSSIBILITY OF RECIDIVISM
AND, PER THE JUDGE'S OWN WORDS, "SUCH VIOLATIONS WOULD BE SUBJECT TO
REVIEW AS AN ACTUAL CASE OR CONTROVERSY."  THEY CURRENTLY SIT IN HIS
LAP.

**STANDING**

[The first prodrome-argument cited the admission that I'm not a party.]
The Pennsylvania Supreme Court has established a two-part test for a
third-party beneficiary:  (1)--The recognition of the beneficiary's
right must be "appropriate to effectuate the intention of the parties"
and (2)--The performance must "satisfy an obligation of the promisee to
pay money to the beneficiary" or "the circumstances indicate that the
promisee intends to give the beneficiary the benefit of the promised
performance."

I FEEL I SATISFY THESE CRITERIA, FOR THE ALLEGED INTENT OF THE SETTLING
PARTIES WAS TO REMOVE THE SCOURGE OF BILLBOARD TOBACCO ADVERTISING, AND
PM'S OBLIGATION TO ACHIEVE THIS END IS WELL-DEPICTED AND UNAMBIGUOUS IN
THE MSA.

[The second-prodrome argument cited "a distinct line of cases involving
third-party beneficiaries to a government contract such as the MSA that
is more directly relevant to the plaintiff's compliant."  It was deemed
necessary to focus strictly on the MSA's language in order to draw
appropriate conclusions.]  Plaintiff's own complaint thus provides that
under the MSA it is up to the AG to seek enforcement of this agreement.
Moreover, 71 P.S. subsection 732-204 provides that the "AG shall
collect, by suit or otherwise, all debts, taxes and accounts due the
Commonwealth."  The allegations of plaintiff's complaint, therefore,
fail to establish that he can assert the claims set forth in it against
PM.  {FOOTNOTE:  "As the Drummond court observed, even if the taxpayer
analysis for standing under Biester applied, the exception would not
allow standing because the AG is better suited to assert any claim."}

IT IS MY ARGUMENT THAT I AM BETTER "POSITIONED" [the actual Biester
term] THAN IS THE AG TO ASSERT THIS CLAIM, INASMUCH AS THE OFFSET
PROVISION WOULD YIELD A ZERO-SUM, EVEN WERE HE SUCCESSFUL; I WOULD HOPE
THAT PM'S ABILITY TO CLAIM "CAPITATION" COULD ONLY BE OVERCOME WERE
ANYONE *EXCEPT* THE STATE SERVING AS THE PLAINTIFF.  THAT THE AG MIGHT
BE BETTER "SUITED" IS ARGUABLE (IN AN IDEAL WORLD) BUT IRRELEVANT HERE.
THUS, I MUST FUNCTION AS A "PRIVATE AG" TO ACHIEVE THIS END.

**Ultimately, after noting the case is no longer moot, it will be
incumbent upon Judge Herron to consider the Biblical Aphorism regarding
"Who will be for me....and if not now, when?"  Knowing that there's no
one "home" to raise an enforcement issue must ultimately gnaw away the
presumption that a MSA-ordained government structure is to be relied
upon--both now and forever--to perform even *minimally* to achieve
unrefuted Public Health goals.**

That's why I think he's consumed almost a month without tossing my
case.  How he specifically implements these conclusions is, of course,
beyond my expertise to predict.  But "attention must be paid."
[literary reference:  Arthur Miller's "Death of a Salesman"]

*

Officials agree on tobacco money

  By Lillie Wilson
  TRIBUNE-REVIEW

  Lawmakers are singing a surprisingly harmonious tune on the prospect
of spending the state's
  impending share of the colossal tobacco settlement.

  Echoing previous suggestions from prominent Republicans,
  House Democrats said they wanted to see Pennsylvania's
  $11.3 billion windfall deposited in a protected long-term
  fund.

  Prominent among the fund's expenses should be cancer
  research, broader state-subsidized health insurance and
  financial aid to hospitals that provide sizable amounts of free
  care, Democratic Caucus Secretary Jeff Coy said.

  Those items echo proposals by state Rep. Dennis O'Brien,
  chairman of the Health and Human Services Committee,
  and Republican state Treasurer Barbara Hafer.

  Pennsylvania's portion of the landmark $206 billion national
  settlement reached last year would average about $450
  million over 25 years, state sources said.

  O'Brien's plan to shelter the money in a new so-called
  HOPE (Health Opportunities for Pennsylvania
  Enhancement) fund, announced in February, was inspired
  by concerns the money might be wasted, spokesman Jason
  Wagner said.

  "The money is just going to appear in the state treasury, and
  it's such an enormous amount," Wagner said. "There was
  (earlier in the year) talk of spending it on everything from
  research to education to roads.

  "The problem arose when people (who apply for state
  funds) started looking at this huge amount of money as an
  opportunity to bail themselves out or to get funding they had
  always wanted and never received."

  Hafer previously called for the creation of a Tobacco
  Settlement Investment Fund and legislation to earmark
  spending from it for smoking-related public health purposes.

  Tom Paese, Gov. Tom Ridge's secretary of administration,
  has held dozens of hearings throughout the state and
  received letters and testimony from more than 450 groups
  and individuals with suggestions on where the money should
  go, spokesman Scott Elliott said.

  In the Pittsburgh area alone, 39 groups and individuals
  submitted suggestions, Elliot said. The University of
  Pittsburgh Cancer Institute and the University of Pittsburgh
  McGowan Center for Artificial Organ Development were
  among the most ardent local supplicants.

  O'Brien told reporters in the spring his committee planned
  to send an approved spending proposal to the House floor
  by fall.

  The first installment of about $375 million could arrive as
  early as June, provided all legal hurdles are cleared.

  Lawsuits opposing the settlement - most of them filed by
  Philadelphia-area oncologist Robert Sklaroff - have stymied
  the state's receipt of the money and sidetracked the
  formation of plans to spend it.

  Sklaroff, an anti-smoking activist, appealed most recently to
  the state Supreme Court. That action is pending.

  "The real reason for the whole thing is immunity (for the tobacco
companies)," Sklaroff said. "That's
  disgusting. It's evil. It's vile. It's unprecedented."

  Sean Connolly, spokesman for state Attorney General Mike Fisher, said
the state's concern was
  that a lengthy Supreme Court action could delay Pennsylvania's receipt
of its share of the settlement,
  which in the interim could be used to save lives.

  Elliott said Ridge's proposal on the money likely would be announced
alongside his overall budget
  plan in late January.

To read the entire article, hyperlink to the T-R homepage and then
double-click on the appropriate "Regional Headline."

http://www.tribune-review.com/